Supreme Court skeptical of South Carolina racial gerrymandering claim

WASHINGTON — The Supreme Court’s conservative majority on Wednesday appeared skeptical that Republicans in South Carolina unlawfully considered race when drawing a congressional district in a way that removed thousands of Black voters.

Conservative justices, who hold a 6-3 majority, questioned whether civil rights groups that challenged the district had sufficient evidence to show that lawmakers were focused predominantly on race when drawing the map. The state says its sole goal was to increase the Republican tilt in the district.

With Black voters tending to vote for Democrats, the case raises the question of whether Republicans were primarily targeting them for racial or partisan reasons.

The case sees the justices grapple with the impact of their own ruling from 2019 that effectively gave the green light to so-called partisan gerrymandering when it said federal courts have no role in assessing such claims.

Republicans led by South Carolina Senate President Thomas Alexander are contesting a January ruling that said that race was of predominant concern when drawing one of the seven districts.

The district, which includes the city and county of Charleston, is represented by Rep. Nancy Mace, a Republican.

After the 2020 census, Republicans redrew the boundaries to strengthen GOP control of what had become a competitive district.

Conservative Chief Justice John Roberts said the plaintiffs’ case rested solely on “circumstantial evidence” and was in that sense different to other racial gerrymandering cases the court has decided.

“This would be breaking new ground in our voting rights jurisprudence,” he said of a decision against the state.

Fellow conservative Justice Amy Coney Barrett likewise noted that the plaintiffs have an “exceedingly heavy” burden to show that the state acted inappropriately, with the court generally adopting the presumption that legislatures act in good faith.

Conservative Justice Neil Gorsuch was among those who probed the difficulty of disentangling race from partisanship.

“Here there’s no evidence the legislature could have achieved its partisan tilt in any other way,” he said.

The court’s three liberal justices were more sympathetic to the plaintiffs, pointing out that the Supreme Court should overturn the lower court only if grave errors were identified in its handling of the case.

Justice Ketanji Brown Jackson pushed back on the notion that plaintiffs did not have sufficient evidence, saying that under court precedents they are not required to produce a “smoking gun” that race was the state’s primary consideration.

On a similar theme, Justice Elena Kagan said that there are “good reasons to use race as a proxy for politics” instead of election data because race can be “more predictive of future voting behaviors.”

Democrat Joe Cunningham won the seat in 2018 and narrowly lost to Mace in 2020. The new map was used in the 2022 midterm elections, in which Mace won by a wider margin than she had two years previously.

The roughly 30,000 Black voters who were moved out of the district were placed into the district held by Rep. Jim Clyburn, D-S.C., who is Black. It is the only one of seven congressional districts in the state held by Democrats.

Although the plaintiffs won in the lower courts, a revised map has not been drawn, with the litigation on hold until the Supreme Court issues its ruling. Both sides have asked the justices to rule by Jan. 1 so that, if required, a new map can be put in place for the 2024 elections.

A win for the plaintiffs would likely make the district more competitive but would not necessarily mean that a Democrat would win.

Lawyers for the Republican legislators said in court papers that the three-judge panel should have acted on the presumption that the Legislature was acting in good faith. They also said there were obvious political reasons that legislators wanted to move predominantly Democratic voters out of the district to cement a Republican majority.

Civil rights groups, including the NAACP Legal Defense and Educational Fund, alleged that Republicans not only unlawfully considered race when drawing the maps, but they also diluted the power of Black voters in doing so.

The claims were brought under the Constitution’s 14th Amendment, which requires that the law applies equally to everyone. As such, although it is a racial gerrymandering claim, it arises under a different legal theory to the major ruling earlier this year in which civil rights advocates successfully challenged Republican-drawn maps in Alabama under the Voting Rights Act.

That case featured mirror-image legal arguments, with Alabama Republicans arguing that the state should have been allowed to use race-neutral line-drawing principles even if that meant there was only one Black-majority district, instead of two. The plaintiffs meanwhile, unlike in the South Carolina case, argued that race was required to be a consideration under the Voting Rights Act.